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Op Ed — Can Changing the Law Lead to Sustainable Universal Open Access?

by | Feb 13, 2023 | 2 comments

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By John Willinsky  (Stanford) 

On November 7, 2019, Kumsal Bayazit, the newly appointed CEO at Elsevier, stated at the Charleston Conference:  “I want to be very clear:  Elsevier fully supports open access.”  She needed to be very clear, given the company’s activities over the previous two decades.  What Ms. Bayazit also clarified, along with the other big publishers’ CEOs, who have made similar statements in recent years, is that we have entered a new phase of open access.  We have a consensus among scholarly publishing stakeholders — including researchers, librarians, publishers, big and small, and funders — that open access is best for science.  Or as Ms. Bayazit elegantly put it “no one can dispute the beauty of the vision of freely-accessible, immediately-available research content.” 

That consensus has been tragically reinforced by the pandemic’s natural experiment in establishing how open access and open science can benefit humankind.  Yet who among us believes we have a clear, sustainable path toward the timely delivery of universal open access?  The lack of such a path is our pressing open access problem.  We owe it to the world, in this age of misinformation, pandemics and climate catastrophe, to provide universal open access now and not over the next few decades, as the current growth of open access suggests.

If you find the publishers dragging their heels on the road to open access, like Shakespeare’s “whining schoolboy … creeping like snail / unwillingly to school,” while asking for more and more money to get there, consider how they are leaving behind the long standing security of copyright-secured subscriptions for a legal netherworld in which copyright has little to offer the digital-era promise of open access to science.  This for a law that began its life as “An Act for the Encouragement of Learning,” as the Statue of Anne 1710 had it, before gaining constitutional backing in the United States, “to promote the Progress of Science.” 

Nothing speaks more to the law’s current failure to serve its original purpose than how diligently we work around copyright to achieve open access, whether through funder-contracts, green final drafts (with or without embargoes), and read-and-publish agreements.  These increasingly elaborate epicycles resemble nothing so much as late Ptolemaic mechanical models of the solar system that misconstrued its true center.  Copyright is not the sun in this system, by any means.  That would be the human intellect.  Yet copyright acts as a gravitational field of our own making.  There is too much at stake with science to continue counting on legal workarounds, while other fields of human endeavor meet the times by amending this law. 

I am particularly struck by how the United States Congress unanimously (!) passed the Music Modernization Act of 2018.  It updated statutory licensing, dating back to the Copyright Act of 1909, for streaming services, while retaining the judicial setting of fair market prices and keeping music open to new interpretations without exclusion.  Why not, I wondered, use statutory licensing to require the institutional users and funders of research publications to fairly compensate scholarly publishers for immediate open access.  Then and there we’d have copyright doing its job once more. 

Now to be sure, introducing statutory licensing into the field of scholarly publishing is not to be taken lightly.  As the 67-page music Act makes clear, it involves a regulatory apparatus of Copernican dimensions.  Yet compared to what the current market offers by way of an open access future, it could provide all parties with a far more certain and sustainable path forward.  This includes not only fair pricing for libraries and funders, but competitive growth opportunities for publishers, while freeing up researchers to submit their work where they think best, without fussing over open access options, requirements, and costs. 

While I delve into the details with the recently published (and open access) Copyright’s Broken Promise: How to Restore the Law’s Ability to Promote the Progress of Science (MIT Press 2023), let me address four further points here. 

The law would, first of all, have to recognize a new category of works I’m calling, for the moment, “research publications’’ (much as the law is currently tailored to address “dramatic works,” “choreography,” “pantomime,” “architectural works,” etc.).  This would involve establishing a research publications registry, with input from librarians, publishers, and others, based on scholarly standards, while remaining open to appeal and innovation.  This would not limit publishers and scholars from taking their broader historical or popularizing works (think A Brief History of I’m in Time) to the trade publishing market. 

Second, statutory licensing typically entails establishing a collective management organization among holders of first-publication rights, in this case, publishers.  The collective participates in the fair price setting and distribution of fees among big and small publishers.  It also generates funds to support new publishers and journals that provide the innovation and growth vital to research (while avoiding antitrust litigation).

Third, statutory licensing has global implications, no less with research than with music.  At its simplest level, introducing statutory licensing for open access into one or two of scholarly publishing’s key jurisdictions (including, perhaps, the EU, as more than one legal scholar has posed to me) will invoke international reciprocal arrangements, likely involving an expansion of the WIPO Copyright Treaty and the WTO’s TRIPPS Agreement.  Following music’s example, this fosters similar laws elsewhere that involve local scholarly publishing in this greater global access. 

Finally, like Ms. Bayazit, I, too, want to be very clear.  This proposal to amend copyright has only two goals: universal open access at a sustainable price.  It generously leaves to others a vast array of scholarly publishing challenges that are often raised when I discuss what statutory licensing might offer, be it research integrity, researcher assessment, publisher value (size, profits, etc.), peer review, or the future of the journal.

As for what’s next, it has been encouraging to find a network of copyright scholars willing to advance the proposal’s legal framing and strategies.  It will be the focus of an OpenAIRE Legal Series, with webinars and an Athens event in February.  A number of librarians and publishers have expressed to me an interest in how this approach can address the uncertainties they face in the move to open access. 

The larger question I’m asking, at this point, is whether something with this big of a lift warrants further consideration, given the proliferation of piecemeal and partial open access strategies competing for our attention today.  I invite you to reach out to me on this very point, or to identify what I’ve overlooked, or, by all means, to set out a more efficient and effective path to this common goal that we now share for research and for our future on this planet.  It’s about time for open access.  

2 Comments

  1. RICHARD FISHER

    Thanks John. This is really important and has huge potential, but will only work globally if non-US jurisdictions are seen as just as important and just as legally resonant as the United States themselves, rather than just marginal add-ons (as, to be honest, has been a recurrent trait in too much schol comm discussion of IP for the past two decades). The point about ‘international reciprocal arrangements’ is really well made. But it’s also where the operation of a ‘collective management organisation’ becomes very tricky. And how would the world’s largest research producer, China, fit into this schema?

    Just to make the point a slightly different way,

    https://www.farrer.co.uk/news-and-insights/twenty-years-of-creative-commons-licences-key-legal-considerations-and-best-practice/
    is an interesting recent take on CC issues from the perspective of English Law (which of course differs from US and continental European IP law in important ways, not least around fair dealing/usage)

    Anyway, good luck!

    Reply
  2. RICHARD FISHER

    Thanks John. This is really important and has huge potential, but will only work globally if non-US jurisdictions are seen as just as important and just as legally resonant as the United States themselves, rather than just marginal add-ons (as, to be honest, has been a recurrent trait in too much schol comm discussion of IP for the past two decades). The point about ‘international reciprocal arrangements’ is very well made. But it’s also where the operation of a ‘collective management organisation’ becomes really tricky. And how would the world’s largest research producer, China, fit into this schema?

    Just to make the point a slightly different way,

    https://www.farrer.co.uk/news-and-insights/twenty-years-of-creative-commons-licences-key-legal-considerations-and-best-practice/
    is an interesting recent take on CC issues from the perspective of English Law (which of course differs from US and continental European IP law in important ways, not least around fair dealing/usage)

    Anyway, good luck!

    Reply

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